P. v. Neiman CA2/6

Filed 4/29/13 P. v. Neiman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B242387 (Super. Ct. No. F473481) Plaintiff and Respondent, (San Luis Obispo County)

v.

KELVIN NEIMAN,

Defendant and Appellant.

Kelvin Neiman appeals from an order committing him to the Department of Mental Health (DMH) for treatment as a mentally disordered offender (MDO) after a court trial. (Pen. Code, § 2960 et seq.)1 Appellant contends the evidence is insufficient to prove that his commitment offense of felony vandalism (§ 594) was a crime of force or violence, and that he received 90 days of treatment during the year preceding his parole release date. We affirm. FACTS AND PROCEDURAL HISTORY In August 2009, appellant was convicted of felony vandalism and was sentenced to two years in state prison. Prior to his release on parole, the Board of Parole

1 All statutory references are to the Penal Code.

Hearings (BPH) certified appellant as an MDO for treatment at Atascadero State Hospital (ASH). Appellant petitioned for a hearing under section 2966 and waived jury trial. Dr. Joe DeBruin, a forensic psychologist at ASH, opined that appellant met all the MDO criteria. Appellant has a 25-year history of mental illness, including a current diagnosis of schizophrenia. He suffers from auditory hallucinations, paranoia, and disorganized thinking. Based on his review of appellant's police report, treatment records, and prior MDO evaluations, Dr. DeBruin concluded that appellant's commitment offense was a crime of force or violence. The doctor summarized the underlying facts as follows: "Essentially [appellant] was living in a motor home next to his mother's residence and he attempted to enter her home. Apparently she had sort of a standing philosophy that when her grandchildren visited her, [appellant] was not allowed to enter her residence. [¶] Essentially what happened is he became angry and . . . grabbed a garden hose and started spraying a window. And then he eventually kicked the glass sliding door in the house. . . . [I]t shattered and then the glass apparently cut his mother on her hands and feet." Dr. DeBruin opined that appellant's severe mental disorder was a cause or aggravating factor in his commission of the commitment offense, which the doctor characterized as "very bizarre" and "very over-reactive." Appellant's records demonstrated that he had received at least 90 days of treatment during the year prior to the BPH hearing. Dr. DeBruin further opined that appellant represented a substantial danger of physical harm to others by reason of his severe mental disorder. Appellant had been arrested more than 70 times and committed numerous acts of violence while in prison. He had also repeatedly violated probation and parole and failed to comply with his required psychiatric treatment. At the conclusion of the hearing, the court denied appellant's petition and ordered him committed for MDO treatment as a condition of parole. This appeal followed.